the enigmatic nature of the israeli legal system · the exceptio doli generalis could therefore no...

PN STOOP AND C CHÜRR (SUMMARY) PER / PELJ 2013(16)5

UNPACKING THE RIGHT TO PLAIN AND UNDERSTANDABLE LANGUAGE IN

THE CONSUMER PROTECTION ACT 68 OF 2008

PN Stoop

C Chürr

SUMMARY

The Consumer Protection Act 68 of 2008 came into effect on 1 April 2011. The

purpose of this Act is, among other things, to promote fairness, openness and

respectable business practice between the suppliers of goods or services and the

consumers of such good and services. In consumer protection legislation fairness is

usually approached from two directions, namely substantive and procedural fairness.

Measures aimed at procedural fairness address conduct during the bargaining

process and generally aim at ensuring transparency. Transparency in relation to the

terms of a contract relates to whether the terms of the contract terms accessible, in

clear language, well-structured, and cross-referenced, with prominence being given

to terms that are detrimental to the consumer or because they grant important

rights. One measure in the Act aimed at addressing procedural fairness is the right

to plain and understandable language. The consumer’s right to being given

information in plain and understandable language, as it is expressed in section 22, is

embedded under the umbrella right of information and disclosure in the Act. Section

22 requires that notices, documents or visual representations that are required in

terms of the Act or other law are to be provided in plain and understandable

language as well as in the prescribed form, where such a prescription exists. In the

analysis of the concept “plain and understandable language” the following aspects

are considered in this article: the development of plain language measures in

Australia and the United Kingdom; the structure and purpose of section 22; the

Philip N Stoop. BCom, LLB, LLM (UP), LLD (UNISA). Associate Professor in the Department of

Mercantile Law, School of Law, University of South Africa . Email: [email protected]. Chrizell Chürr. LLB, LLM (UP), LLD (UNISA). Senior Lecturer in the Department of Mercantile

Law, School of Law, University of South Africa. Email: [email protected].

mailto:[email protected]

PN STOOP AND C CHÜRR PER / PELJ 2013(16)5

515 / 614

documents that must be in plain language; the definition of plain language; the use

of official languages in consumer contracts; and plain language guidelines (based on

the law of the states of Pennsylvania and Connecticut in the United States of

America).

KEYWORDS: Plain language (plain and understandable language), Transparency,

Procedural fairness, Consumer rights, Consumer contracts; Contractual fairness.


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ISSN 1727-3781

Authors: PN Stoop and C Chürr

UNPACKING THE RIGHT TO PLAIN AND UNDERSTANDABLE

LANGUAGE IN THE CONSUMER PROTECTION ACT 68 OF 2008

http://dx.doi.org/10.4314/pelj.v16i5.12

2013 VOLUME 16 No 5

http://dx.doi.org/10.4314/pelj.v16i5.12


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UNPACKING THE RIGHT TO PLAIN AND UNDERSTANDABLE LANGUAGE IN

THE CONSUMER PROTECTION ACT 68 OF 2008

PN Stoop

C Chürr

CLARITY

Frequently, though we talk about transparency, We proliferate opacity

When what we need is clarity. Nowadays, there's an ever-growing tendency

To obfuscate with much prolixity, When what we need is clarity.

You wrote something long; that is wrong, it will not do. Keep it plain and short and the message will get through.

Just write with … Clarity means abandoning obscurity

And preferring more simplicity. Write English as it ought to be. Yes, what we need is clarity.1

1 Introduction

The South African National Consumer Protection Act2 (the Act) came into effect on 1

April 2011. The purpose of this Act is inter alia to promote fairness, openness and

respectable business practice between the suppliers of goods or services and the

consumers of such goods and services. The Act furnishes consumers with

augmented specific consumer rights, grounds for product liability, and certain

automatic warranties pertaining to the quality of goods.

One of the most important aspects addressed in the Act is "language". Section 22 of

the Act stipulates that all information should be in plain and understandable

language. The phrase "plain and understandable" for purposes of consumer

Philip N Stoop. BCom, LLB, LLM (UP), LLD (UNISA). Associate Professor in the Department of

Mercantile Law, School of Law, University of South Africa . Email: [email protected]. Chrizell Chürr. LLB, LLM (UP), LLD (UNISA). Senior Lecturer in the Department of Mercantile

Law, School of Law, University of South Africa. Email: [email protected]. 1 Skinner 1998 www.textfixarna.se. 2 Consumer Protection Act 68 of 2008.

mailto:[email protected]


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contracts can be equated to "clear"; "understandable" and "user-friendly".3 This

means that difficult legal concepts and documents should be transformed or

simplified into a language that is plain, understandable, clear, and user-friendly.

However, the concept "plain and understandable language" will itself become clear

and understandable only when the structure and purpose of section 22; the

documents required to be in plain language; the definition of plain language; and

the use of official languages in consumer contracts and guidelines pertaining to plain

language contracts are fully unpacked and discussed. Moreover, developments and

the legal position in Australia and the United Kingdom concerning plain language in

consumer contracts will be briefly introduced. The status quo in the United Kingdom

is relevant to the extent that the country is the leader in the so-called "Plain English

Movement". This movement became more powerful as part of the consumer

movement in the 1970s, and from here, the need and demand for plain language in

consumer contracts continued to grow stronger - not only in the United Kingdom,

but worldwide. The Australian case is relevant to the extent that the "plain language

concept" in consumer contracts is fairly new and the country's legislation has

recently undergone some reform in this regard. It will be concluded that when

consumer contracts are complex and multifaceted, simplicity and plainness may be

the only way to make them understandable. Lastly, the law of the states of

Pennsylvania and Connecticut in the United States of America will also be considered

in brief. These states' legislators have prescribed clear formal, general and visual

style guides for contracts.

2 The impact of plain language measures on contractual fairness

The law of contract forms the basis of most aspects of consumer-protection law.

Therefore, before we continue to the analysis of the plain language provisions

contained in the Act, it is important to explain the more philosophical or theoretical

background to plain language and the role plain language plays in contractual

fairness.

3 Kirby 2011 www.mondaq.com.


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Traditionally the law of contract merely provides a framework within which contracts

are enforced,4 without concern for their context.5 Legislation is then often adopted

to address this imbalance, by regulating the fairness of contract terms, for instance.6

The starting point for consumer protection legislation is the imbalance, from a legal

and economic perspective, between suppliers and consumers in the making of a

contract, in the terms of a contract, and in the enforcement of a contract. This

imbalance may arise because the traditional (or classical) law of contract applies

regardless of the identity of the parties, their relationship to one another, the subject

matter of the contract, and the social context of the contract.7

In consumer protection legislation fairness is usually approached from two angles,

namely substantive and procedural fairness. As the aim of these two "approaches"

and therefore the moment at which reasonableness is relevant differ, it makes sense

to distinguish between them, even though they are interdependent.

Measures aimed at procedural fairness address conduct during the bargaining

process and generally aim at ensuring transparency.8 Transparency has two

elements: (a) transparency in relation to the terms of a contract, and (b)

4 However, when it is alleged that a contract in restraint of trade is unreasonable, reasonableness

(the context), is assessed at the time of enforcement. See, for example, Magna Alloys and Research (SA) Pty Ltd v Ellis 1984 4 SA 874 (A); National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 3 SA 1092 (T) 1107. Before the decision in Bank of Lisbon and South Africa v De Ornelas 1988 3 SA 580 (A) it had also been accepted that the exceptio doli generalis provided

a remedy against the enforcement of an unfair contract in unfair circumstances but the then

Appellate Division reviewed the authorities on the exceptio doli generalis and concluded that it is not part of South African law (at 607B). The exceptio doli generalis could therefore no longer be

used to give relief against the enforcement of an unfair contract. 5 The taking into consideration of context at the formation of a contract or pre-contractually is

therefore not foreign to the South African law of contract. See for example the rules on

misrepresentation and fraud, duress, undue influence, mistake and illegality, which aim at curbing unfairness at the formation of a contract. In these instances context (at the formation of

a contract) plays a role. The question is, however, whether the common-law rules and principles cover the ground sufficiently or whether there are gaps that need to be filled to curb unfairness.

See also Christie and McFarlane Law of Contract 14. 6 For a discussion of the goal of consumer protection, see Rinkes 2008 Yearbook of Consumer Law

15. 7 Rinkes 2008 Yearbook of Consumer Law 15. 8 See, generally, Lawson Exclusion Clauses 219; Naudé 2006 Stell LR 377.


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transparency in the sense of not being positively misled, pre-contractually or during

the performance of a contract, as to aspects of the goods, service, price, and terms.

Transparency in relation to the terms of a contract relates to whether or not the

contract terms are accessible, in clear language, well-structured, and cross-

referenced, with prominence being given to terms that are detrimental to the

consumer or because they grant important rights.9 In a nutshell, one could say that

a contract is procedurally fair where it has been concluded voluntarily.

Substantive fairness relates to procedural fairness through the requirement of

transparency. That is because a high level of transparency means that the consumer

is placed in a position at least to have a chance of being able to exercise a

reasonable degree of informed consent. So what is a high level of transparency? A

good level of transparency has to do with, among other things, aspects such as

information disclosure, awareness of the terms, the size of the print, the clarity of

the language, and the interpretation and format, as these procedural factors relate

to circumstances surrounding the manner in which agreement is reached.10

Transparency can be a negative control which allows at most the elimination of

unclear and incomprehensible contract terms, or it may provide for positive duties,

such as the duty to explain and summarise the implications of certain contractual

terms.11 A high level of transparency means that the consumer is placed in a position

at least to have a chance of being able to exercise a reasonable degree of informed

consent. Transparency therefore enhances choice and fairness substantively.12

Although procedural fairness and measures aimed at procedural fairness may have

limitations, the requirement of plain and understandable language, as set out in

section 22 of the Consumer Protection Act, in a multilingual South African context

9 Willet 2008 Yearbook of Consumer Law 75. See also Paterson 2003 MULR 949, where the author

analyses elements of transparency: a term is in transparent where it is (a) expressed in

reasonably plain language, (b) legible, (c) presented clearly, and (d) readily available to any party affected by the term.

10 See also Nebbia Unfair Contract Terms 135-136. 11 See also Nebbia Unfair Contract Terms 137. 12 Willet Fairness 55-56.


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where consumers are often only functionally literate, is probably the most important

pro-active fairness measure contained in the Act.

3 The development of plain language in consumer contracts in

Australia and the United Kingdom

Plain language is not an unfamiliar term and has been the focal point of wide-

ranging discussion, research and legislation for a long time in countries such as

Australia and the United Kingdom. The origins and evolution of the "plain language

movement" date back centuries. Garner describes plain language as "the language

of the King James version of the Bible and it has a long literary tradition in the so-

called Attic style of writing" (however, many words derived from other languages are

used in this version of the Bible).13 In turn, the Attic style is associated with well-

known Athenian orators of the fourth and fifth centuries BCE and the Attic style is

described as "active, direct, forceful and exemplified purity and simplicity".14 The

simple, uncomplicated and plain language styles can be traced down through the

centuries to the 20th century, when reading researchers such as Flesch (in 1979)

developed and expanded reading scales in order to examine and investigate

readability levels of documents.15

3.1 Australia

The plain language movement in Australia has already been active for decades.16

However, the concept "plain language" pertaining to consumer contracts is fairly

new in Australian law.

In 2010, the Parliament of Australia, also known as the Commonwealth Parliament

or Federal Parliament approved legislation implementing the Australian Consumer

Law (ACL). This legislation regulates, among other things, unfair terms in standard

13 Kimble 1994-1995 Scribes J Legal Writing 53. 14 Petelin 2010 Corporate Communications 207. 15 See para 9 below. 16 Mazur 2000 www.plainlanguage.gov.


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form consumer contracts as well as the unfair contract terms law.17 The purpose of

the ACL is to protect and safeguard consumers and to ensure fair trading in

Australia.18 The ACL is contained in schedule 2 of the Competition and Consumer

Act, 2010, which is the new name of the Trade Practices Act, 1974. 19

Sections 23 and 24 of the Competition and Consumer Act, 2010 are of cardinal

importance to this article, since they stipulate what unfair terms of consumer

contracts are and the meaning of unfair is clearly explained. It is important to note

that the ACL does not specifically provide for "plain language" as such, but provides

that a term is transparent if the term is "expressed in reasonably plain language".20

Section 23 stipulates as follow:

Unfair terms of consumer contracts (1) A term of a consumer contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract. (2) The contract continues to bind the parties if it is capable of operating without the unfair term. (3) A consumer contract is a contract for: (a) a supply of goods or services; or (b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

Section 24 stipulates the following:

Meaning of unfair (1) A term of a consumer contract is unfair if: (a) it would cause a significant imbalance in the parties; rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

17 Paterson 2003 MULR 934. 18 See also Gorones Australian Consumer Law 35-55. 19 ACL 2010a www.consumerlaw.gov.au. 20 Section 24(3) of the Competition and Consumer Act, 2010.


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(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following: (a) the extent to which the term is transparent; (b) the contract as a whole. (3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term. (4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

The question now is what exactly is meant by "reasonably plain language". As

already stated, no specific provision is made for the term "reasonably plain

language" under the ACL, and it is therefore assumed that reasonably plain language

in consumer contracts refers to contracts that are "easily legible", "clearly expressed"

and, if printed or typed, be in a "minimum 10 point Times New Roman font, or a

minimum of an equivalent size".21

Moreover, communication is the main purpose of language and it is submitted that

the purpose of plain language is to communicate in a clear and effective way. In

other words, the needs of the audience (the consumers) take precedence over any

other consideration.22 The following definition of plain language was therefore

recommended:23

A communication is in plain language if it meets the needs of its audience - by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it.

A second question that can be asked is how a court would determine if a term is

"unfair"? When a court has to determine whether a term of a standard form

consumer contract is unfair, any matter that the court believes is relevant and

21 Paterson 2003 MULR 934. 22 Cheek 2010 Clarity 5. 23 Cheek 2010 Clarity 5.


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pertinent may be taken into consideration.24 The court is, however, obliged to take

the following two factors into consideration:25 (a) the extent to which the term is

transparent; and (b) the contract as a whole.

A lack of transparency regarding a term in a standard form consumer contract has

serious consequences and may cause imbalances for contract parties' rights and

obligations. It is therefore important for a court to take the transparency

requirement into consideration. Only the court has jurisdiction to determine whether

a term is transparent or obscure.26 Terms which may not be considered transparent

include terms that are concealed in fine print or schedules, or that are expressed

and phrased in legalese or in complex, difficult or technical language.27

Although the court is required to take into account the transparency requirement,

this does not mean that a contract that does not meet the transparency requirement

is unfair. It should be remembered that transparency "will not necessarily overcome

underlying unfairness in a contract term".28 The wording of the United Kingdom

counterpart regarding unfair contract provisions differs somewhat from the

Australian unfair contract terms provisions.29 The United Kingdom's laws refer to

'plain and intelligible language' while the Australian laws refer to 'transparency'. The

finding of Smith J in the case of Office of Fair Trading v Abbey National plc30 shed

some light in this regard:

Regulation 6(2) … requires not only that the actual wording of individual clauses or conditions be comprehensible to consumers, but that the typical consumer can understand how the term affects the rights and obligations that he and the seller or supplier have under the contract.

The determining of fairness concerning a particular contractual term can therefore

not be performed in isolation. It is therefore crucial that terms be assessed in the

24 ACL 2010b www.consumerlaw.gov.au 12-13. 25 ACL 2010b www.consumerlaw.gov.au 12-13. 26 ACL 2010b www.consumerlaw.gov.au 12-13. 27 ACL 2010b www.consumerlaw.gov.au 12-13. 28 Commonwealth of Australia 2010 www.commonlaw.gov.au 11. 29 See para 3.2 below. 30 Office of Fair Trading v Abbey National plc 2008 EWHC 875.


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light of the contract as a whole.31 When there is a particular term in the contract

that is to the benefit of the consumer, such an advantageous or favourable term

may not counterbalance an unfair term if the consumer is unaware of it.32 It is thus

clear that a court will be able to determine the "unfairness" of a term only if the

transparency factor and the 'contract as a whole' factor are taken into account.

3.2 United Kingdom

'Plain English' is not a new concept in the United Kingdom and had already left its

mark during the fourteenth century.33 The first English dictionary saw the light in

1604 with an explanation that "hard vsuall English words, borrowed from the

Hebrew, Greeke, Latine, or Frensch. &c. With the interpretation thereof by plaine

English words, gathered for the benefit & helpe of Ladies, Gentlewomen, or any

other vnskilfull persons".34

From the seventeenth century, the Protestants, especially the Quakers, were big

proponents of the use of "simple style", which was commonly known as "plain

language".35

During the 1970s the "plain English movement" was started by several consumer

groups and the mass media were used in order to "ridicule examples of obscurity in

legal documents and government forms". In 1979 the "Plain English Campaign" was

established by Muller and Cutts, who strove to fight "gobbledygook-legalese, small

print and bureaucratic language". This "Plain English Campaign" has grown over the

years and is still a fast-growing and successful phenomenon today.36

31 ACL 2010b www.consumerlaw.gov.au 12-13. 32 Director of Consumer Affairs Victoria v AAPT 2006 VCAT 1493; see also Commonwealth of

Australia 2010 www.consumer.vic.gov.au. 33 Micklethwait Noah Webster 34; see also Sundin 2002 www.textfixarna.se. 34 Micklethwait Noah Webster 34; see also Sundin 2002 www.textfixarna.se. It is important to

remember that although the spelling of certain words were different at that time (1604), plain

language had already become important. 35 Sundin 2002 www.textfixarna.se. 36 Sundin 2002 www.textfixarna.se.


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A need for the protection of consumers arose over the years, and the United

Kingdom was left with no choice other than to develop and implement the necessary

legislation.

As the law currently stands, there are two major pieces of legislation which deal with

unfair contract terms, and this legislation also contains certain provisions relating to

plain language in consumer contracts. They are the Unfair Contract Terms Act, 1977

(UCTA) and the Unfair Terms in Consumer Contracts Regulations, 1999 (UTCCR).37

The following table provides a brief overview and comparison between the UCTA

and the UTCCR:38

UCTA UTCCR

Complex and difficult Act, written in a

'compressed' and dense style.

The Unfair Contract Terms Directive39 is

implemented through the UTCCR.

Applicable to a broad range of contracts

including contracts between:

two businesses

businesses and consumers

'private' contracts

Narrower as well as broader than the UCTA:

narrower - the UTCCR applies to

consumer contracts only

broader - the UTCC is applicable

to all consumer contracts

Deals with four broad types of exclusion

clauses as well.

No provision is made for exemptions

pertaining to insurance, land or intellectual

property contracts.

The UTCCR is applicable to all non-

negotiated terms, unless otherwise specified.

As for plain language in consumer contracts, the UTCCR subjects consumer

contracts to two important requirements:40 (a) consumer contracts should be written

in "plain, intelligible language"; and (b) consumer contracts should be "fair".

37 See Scottish Law Commission 2012 lawcommission.justice.gov.uk for an overview. 38 Scottish Law Commission 2012 lawcommission.justice.gov.uk. 39 European Council Directive 93/13/EEC of 5 April 1993. 40 European Council Directive 93/13/EEC of 5 April 1993.


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Regulation 7 of the UTCCR stipulates that it is the responsibility of sellers or

suppliers to ensure that any written term of a consumer contract is expressed in

"plain, intelligible language". This concept applies in three ways:41

(a) If the meaning of a contract term is in question or doubtful, the courts will

choose the interpretation that is most favourable to the consumer.42 This is

where the well-known common-law rule is reflected: "an ambiguous written

term should be construed against the party putting it forward".43

(b) Part 8 of the Enterprise Act, 2002 stipulates that enforcement bodies are

authorised to remove terms which are not in "plain, intelligible language".

(c) A term pertaining to the "adequacy of the price" or "main subject matter" will

be reviewable for fairness if such a term(s) is not drafted in "plain, intelligible

language".

The fairness of any term(s) in a consumer contract may be tested by a court unless

such a term(s) falls within one of the following exemptions:44

(a) negotiated terms;

(b) terms which reflect the existing law; or

(c) terms which relate to the main subject matter of the price.

Moreover, in 2002 a Consultation Paper was prepared and the meaning of 'plain,

intelligible language' came under "review" again. It was determined how this term

compared to the UCTA and the outcome was as follows:45

A term was not plain and intelligible if it was hard to read, not readily accessible or hidden in confusing layout. … all these factors taken together

41 European Council Directive 93/13/EEC of 5 April 1993. 42 See also Stoop 2011 Int J Private Law 330. 43 Notably, the Maltese consumer law pertaining to plain and intelligible language in consumer

contracts is similar to the UK law. Article 47(1) of the Maltese Consumer Affairs Act, 1994

stipulates that a term(s) in any consumer contract must be "written in plain and intelligible language which can be understood by the consumer to whom the contract is directed". Article

47(2) further states that "if a term is ambivalent or if there is any doubt as to its meaning, then the interpretation most favourable to the consumer shall prevail". See Micallef 2007

www.iaclaw.org. 44 Scottish Law Commission 2012 lawcommission.justice.gov.uk. 45 Scottish Law Commission 2012 lawcommission.justice.gov.uk.


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amounted to a requirement of "transparency". A term should only be exempt if it was transparent.

Clause 14(3) of the Draft Unfair Contract Terms Bill, 2005 stipulates the following:46

14(3) Transparent means (a) expressed in reasonably plain language (b) legible (c) presented clearly, and (d) readily available to any person likely to be affected by the contract term or

notice in question.

It can therefore be concluded that "plain, intelligible language" means that a term(s)

in a consumer contract should also be legible, presented clearly and readily available

to the consumer.

4 The statutory provision: section 22 of the Act

Before we turn to the analysis of section 22 of the South African Consumer

Protection Act, it is unfortunately necessary to quote extensively from the Act to

enable the reader to appreciate the magnitude of the plain language provision.

Section 22 stipulates the following:

(1) The producer of a notice, document or visual representation that is required, in terms of this Act or any other law, to be produced, provided or displayed to a consumer must produce, provide or display that notice, document or visual representation –

(a) in the form prescribed in terms of this Act or any other legislation, if any, for that notice, document or visual representation; or

(b) in plain language, if no form has been prescribed for that notice, document or visual representation.

(2) For the purposes of this Act, a notice, document or visual representation is in

plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort, having regard to -

46 See, in general, Willet 2008 Yearbook of Consumer Law 79.


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(a) the context, comprehensiveness and consistency of the notice, document or visual representation;

(b) the organisation, form and style of the notice, document or visual representation;

(c) the vocabulary, usage and sentence structure of the notice, document or visual representation; and

(d) the use of any illustrations, examples, headings or other aids to reading and understanding.

(3) The Commission may publish guidelines for methods of assessing whether a

notice, document or visual representation satisfies the requirements of subsection (1)(b).

(4) Guidelines published in terms of subsection (3) may be published for public

comment.

In the following paragraphs we will address the following aspects: the structure and

purpose of section 22, which documents must be in plain language, what plain

language is, if documents should be drafted in plain language in order to comply

with the plain language requirements, and proposed guidelines to determine

whether or not a document is written in plain language.

5 Structure and purpose of section 22

Section 22 requires notices, documents or visual representations that are required in

terms of the Act or other law to be provided in plain and understandable language

as well as in the prescribed form, if any. Section 50 also makes plain language

compulsory in all consumer agreements.47

The right to receive information in plain and understandable language48 is embedded

under the umbrella right of information and disclosure in the Act.49 In interpreting

section 22, effect must be given to certain purposes set out in section 3, several of

which are served by the protection of the right to receive information in plain and

47 The National Credit Act 34 of 2005 was the first South African piece of legislation that required

agreements to be drafted in plain language (s 64). The Companies Act 71 of 2008 in subsections

6(4) and (5) has a definition of plain language with regard to the drafting of a prospectus, notice, disclosure or other document that does not have a prescribed form. The definition is

similar to the definition of plain language in the Consumer Protection Act 68 of 2008. 48 Section 22 does not merely require the use of plain and understandable language; the plain

language requirement is elevated to a fundamental consumer right (see the heading of s 22

where the word 'right' is used). See also Gouws 2010 SA Merc LJ 85. 49 Chapter 2, Part D of the Consumer Protection Act 68 of 2008.


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understandable language.50 These include the purpose of "reducing and ameliorating

any disadvantages experienced in accessing any supply of goods or services by

consumers whose ability to read and comprehend any advertisement, agreement,

mark, instruction, label, warning, notice or other visual representation is limited by

reason of low literacy, vision impairment or limited fluency in the language in which

the representation is produced, published or presented".51 Section 22 also serves the

purpose of "improving consumer awareness and information and encouraging

responsible and informed choice and behaviour".52 Enabling consumers to make

informed choices means that consumers are able to compare products and the

prices they are willing to pay, which makes markets more efficient.53 Disclosure can,

for example, drive down prices by allowing consumers to shop around and compare

prices. Accessible information in required notices and documents and in consumer

agreements is also important for the purpose of "promoting consumer confidence,

empowerment and the development of a culture of consumer responsibility".54 The

prescription of standardised forms for notices and documents that are required in

terms of legislation enhances consumer protection because basic information is to be

presented in a uniform format, making it less likely that consumers will be misled.55

The plain language requirement therefore seeks to advance procedural fairness.56 In

the context of consumer contracting, procedural fairness refers to fairness in the

actual process of contracting itself, as opposed to fairness in the substance of the

agreement.57 The purpose of measures aimed at procedural fairness is to enable

consumers to look after their own interests when dealing with suppliers.58 One

50 Section 2(1) of the Consumer Protection Act 68 of 2008. 51 Section 3(1)(b)(iv) of the Consumer Protection Act 68 of 2008. See also Gen N 1957 in GG 26774

of 9 September 2004 (Draft Green Paper on the Consumer Policy Framework) 31. 52 Section 3(1)(e) of the Consumer Protection Act 68 of 2008. 53 Gen N 1957 in GG 26774 of 9 September 2004 (Draft Green Paper on the Consumer Policy

Framework) 28. 54 Section 3(1)(f) of the Consumer Protection Act 68 of 2008. 55 Gen N 1957 in GG 26774 of 9 September 2004 (Draft Green Paper on the Consumer Policy

Framework) 28. 56 See also para 2 above. 57 See, generally, Lawson Exclusion Clauses 219; Naudé 2006 Stell LR 377. 58 Willet 2008 Yearbook of Consumer Law 75.


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important aspect of procedural fairness is transparency.59 Several issues form part of

transparency, such as the prominence given to certain terms, the size of the print,

the language and structure of the contract, and giving the consumer an adequate

opportunity for reflection.60 Plain language is vital to transparency and therefore also

to procedural fairness. Thus, many countries have adopted plain language legislation

which requires consumer agreements to be in plain language.61

6 Which documents must be in plain language?

Section 22(1) provides that any notice, document or visual representation that is

required in terms of the Consumer Protection Act or any other law should be in the

form prescribed by the Act.62 If no form is prescribed, it must be in plain language.63

Therefore, this section only applies to notices required by legislation, visual

representations and written agreements, and not to oral agreements.64 Section 50

deals with written consumer agreements. It states that the Minister may prescribe

categories of agreements required to be in writing.65 It further states that even

where an agreement between a supplier and a consumer has been put in writing

voluntarily, it must satisfy the plain language requirement and the supplier must

then provide a copy of the agreement to the consumer.66

59 See also Paterson 2003 MULR 949, where the author analyses elements of transparency: a term

is transparent where it is (a) expressed in reasonably plain language, (b) legible, (c) presented

clearly, and (d) readily available to any party affected by the term. 60 Willett Fairness 321-375. 61 See para 2 above. See also Gouws 2010 SA Merc LJ 80. 62 Section 22(1)(a). The Consumer Protection Act requires certain information to be made available

to consumers, and the required notices, provisions or agreements should be written in plain and

understandable language: see s 24 read with Consumer Protection Regulations, 2008 regs 6-7 (prescribed product labelling and trade descriptions; in this regard see also s 15 of the

Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972); s 25 read with reg 8 (notice disclosing reconditioned or grey market goods); s 27 read with reg 9 (notice disclosing prescribed

information in respect of intermediaries); s 37 read with reg 12 (cautionary statement disclosing

prescribed information in respect of alternative work schemes); s 49 (notice required for certain terms and conditions); s 50(1) (categories of agreements required to be in writing).

63 Section 22(1)(b) of the Consumer Protection Act 68 of 2008. 64 Du Preez 2009 TSAR 75-76. 65 Du Preez 2009 TSAR 75-76. 66 Section 50(2)(a)-(b) of the Consumer Protection Act 68 of 2008. Contra Gouws 2010 SA Merc LJ

86, where it is stated that "[a]lthough signature of an agreement signifies the parties' assent to

it, subs(2)(a) is an exception with a view to protecting the consumer, and not the supplier. However, to avoid creating a 'ticket case' and because the Act contemplates an agreement


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7 What is plain language in terms of section 22?

According to section 22(2), plain language is language that enables an ordinary

consumer (of the class of persons for whom a notice, document or visual

representation is intended), with average literacy skills and minimal experience as a

consumer of the relevant goods or services, to understand the content, significance

and import of a document, notice or visual representation, without undue effort.67

When determining if a document or representation is in plain and understandable

language, the following aspects must be taken into account:68

(a) the context, comprehensiveness and consistency of the notice, document or

visual representation;69

(b) the organisation, form and style of the notice, document or visual

representation;70

(c) the vocabulary, usage and sentence structure of the notice, document or

visual representation;71 and

(d) aids used to assist the consumer in the reading and understanding of the

notice, document or visual representation.72

signed by both the consumer and the supplier, an agreement that is not signed by the supplier has to be signed by the consumer for s 22 to apply".

67 Section 64 of the National Credit Act 34 of 2005 and s 22 of the Consumer Protection Act 68 of 2008 have identical plain language requirements. In Standard Bank of South Africa Ltd v Dlamini 2012 ZAKZDHC 64, a case which dealt, among other things, with the plain language

requirements of the National Credit Act the court concluded (at para [48]-[50]) that strictly interpreted neither s 63 nor s 64 of the National Credit Act assists an illiterate. However,

purposively interpreted they (the plain language and official language provisions of the National Credit Act) embody the right of the consumer to be informed by reasonable means of the

material terms of the documents he signs. Furthermore, the supplier bears the onus to prove

that it took reasonable measures to inform the consumer of the material terms of the agreement.

68 See Gouws 2010 SA Merc LJ 89, where he states that the features listed in s 22(2)(a)-(d) are merely guidelines and that non-compliance with them will not without more ado render the

agreement not plain. For further discussion, see also Newman 2010 Obiter 735. 69 Section 22(2)(a) of the Consumer Protection Act 68 of 2008. 70 Section 22(2)(b) of the Consumer Protection Act 68 of 2008. 71 Section 22(2)(c) of the Consumer Protection Act 68 of 2008. 72 Section 22(2)(d) of the Consumer Protection Act 68 of 2008.


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Gordon and Burt analysed the definition of plain language in section 22 and they

state that the definition has been lauded internationally, since it involves the

grammar and wording as well as the structure, content, design and style of the

document.73 However, it is a very broad definition as it does not give much direction

to drafters as to what is specifically required of them.74

The use of the phrase "an ordinary consumer" indicates that not only lawyers and

judges should be able to understand a document sent to consumers.75 "For whom a

notice, document or visual representation is intended" indicates that suppliers will

have to draft more than one set of standard contracts for a specific situation in order

to cater for the consumers for whom it is intended, so they must know their "target

audience" in advance. It is also advisable to test the proposed wording of the

document on a part of the target audience.

The phrase "average literacy skills" implies that documents must cater for average

South African consumers of the class for whom the notice, document or

representation is intended. A total of approximately eleven percent of adult South

Africans are illiterate, so only 89 percent is at least functionally literate; that is, they

have at least some basic reading and writing skills.76 However, that does not equip

South African consumers to understand business and legal documents.77

"Minimal experience as a consumer of the relevant goods or services" indicates that

drafters should write for first-time consumers of the particular goods or services.78 In

other words, drafters should focus on the consumer with the least experience and

not just the average consumer.79

73 Gordon and Burt 2010 Without Prejudice 59-60. See also Melville Consumer Protection Act 157-

170. 74 Louw Plain Language 137. 75 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333; Melville

Consumer Protection Act 161. 76 World Bank 2012 web.worldbank.org. See also Aitchision and Hartley 2006 Journal of Education

93-94; Sibiya Alleviating Illiteracy 1. See also Melville Consumer Protection Act 161. 77 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333. 78 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333. 79 Melville Consumer Protection Act 162.


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"Content, significance and import" indicates that consumers must not only

understand what the document says, but also how it applies to them, its significance

and effect.80 Put differently, the consumer must at least clearly understand the legal

consequences of a document or terms, and its express and implied meaning.

"Without undue effort" indicates that if consumers need to consult an advisor or

dictionary to understand the terms of a document it would be concluded that their

understanding cost them undue effort and that such a document was not in plain

language.81

"Context" indicates that it is necessary to take account of how and when consumers

read a document or how the document is used.82 What the consumer could

reasonably be expected to know from previous transactions could therefore be taken

into account. Gordon and Burt use the example of a DVD: with a DVD rental contract

it would be reasonable to expect consumers to know what a DVD is, as it is unlikely

that they would be in this context if they did not.83

"Comprehensiveness" indicates that the document must give full information.84

"Comprehensiveness" further indicates that it is not only necessary to take account

of how a document is written, but also of what is written. The contents of a

document should therefore be considered and should enable a consumer to make an

informed choice.

"Consistency" indicates that the terminology and style must be consistent

throughout a document.85 "Consistency" therefore indicates that it necessary to take

account of how a document is written. Factors such as the consistent use of

80 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333. 81 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333, Gouws 2010

SA Merc LJ 88-89; Melville Consumer Protection Act 162. 82 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333. 83 Gordon and Burt 2010 Without Prejudice 59-60; Melville Consumer Protection Act 163. 84 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333; Melville

Consumer Protection Act 163. 85 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333; Melville

Consumer Protection Act 163.


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terminology, headings, and sentence structure are examples of what should be

considered.

"Organisation, form and style" refers to how a document is structured. For example,

no hidden small print should be used and important information should be given at

the top of a document or important sections should be highlighted in text boxes.86

"Vocabulary, usage and sentence structure" refers to general principles of

readability, such as using short sentences, the active voice, personal pronouns and

short words, and avoiding technical jargon.87

"Illustrations, examples, headings or other aids to reading and understanding" refers

to devices to make a document more inviting and to good techniques for

communicating complex information.88

8 Official languages

Unlike section 63 of the National Credit Act,89 the Consumer Protection Act does not

require information to be provided in more than one of the official languages.90

Under the Constitution of the Republic of South Africa, 1996, South Africa has 11

languages.91 The state has a constitutional duty to take positive and practical

measures to elevate and advance the use of languages that historically have had

86 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 333-334; Melville

Consumer Protection Act 163. 87 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 334; Melville

Consumer Protection Act 163; Newman 2010 Obiter 741-745. 88 Gordon and Burt 2010 Without Prejudice 59-60; Stoop 2011 Int J Private Law 334; Melville

Consumer Protection Act (2010) 163. 89 See also para 7 above. 90 In terms of s 63 of the National Credit Act 34 of 2005 every consumer has a right to receive any

document that is required in terms of the National Credit Act in an official language that he reads

or understands to the extent that this is reasonable, bearing in mind usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population

ordinarily served by the person required to deliver that document. The Consumer Protection Act 68 of 2008 does not contain a similar provision. One can therefore conclude that the Consumer Protection Act does not furnish a consumer with a right to receive any document that is required

in terms of the Consumer Protection Act in a particular official language. 91 Section 6 of the Constitution of the Republic of South Africa, 1996.


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diminished status.92 All official languages must enjoy parity of esteem and be treated

equitably.93

An official language requirement would have placed an enormous burden on

suppliers in South Africa. One can, for example, imagine what the financial impact

would have been if all suppliers were required to translate information and

documents into all eleven official languages. However, it is uncertain what the

position will be in respect of South Africans who do not speak English (sometimes

regarded as the lingua franca of the country and also the language commonly used

in agreements) and of foreigners in South Africa (who speak only a foreign

language).94 How could the requirements of plain language ever be complied with if

consumers do not understand the language used in agreements or other

communications? Such consumers presumably have to consult an advisor or

dictionary and it would be considered that their understanding cost them undue

effort and that the document was not in plain language. However, a foreigner would

probably not be regarded as an "ordinary consumer of the class of persons for

whom the notice, document or visual representation is intended", and accordingly

the requirements of plain language would not require the document to be made

available in a foreign language.95

Furthermore, section 40(2) provides that it is unconscionable for a supplier to

knowingly take advantage of the fact that a consumer is substantially unable to

protect his or her own interests because of an inability to understand the language

of an agreement. If the supplier realises that a consumer is unable to understand

the language of the agreement, the agreement may be subject to challenge on the

basis of section 40.

92 Section 6(2) of the Constitution of the Republic of South Africa, 1996. 93 Section 6(4) of the Constitution of the Republic of South Africa, 1996.See also Alberts "Plain

Language" 89-118. 94 See the discussion in Stoop 2011 Int J Private Law 334. 95 Section 22(2) of the Consumer Protection Act 68 of 2008.


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The draft of the Consumer Protection Bill contained a section on the right to

information in an official language.96 However, it was omitted from the final Bill after

certain industry stakeholders made submissions that the requirement for the

provision of information in all official languages would have been too onerous.97

On the one hand, in the light of this omission, one can conclude that a notice,

document or visual representation does not need to be written in an official

language in order for it to be in plain language. On the other hand, plain language is

language that enables an ordinary consumer of the class of persons for whom a

notice, document or visual representation is intended to understand it. When a

drafter considers the class of persons for whom a notice, document or visual

representation is intended, language should certainly be taken into account. It will,

therefore, be to a supplier's advantage to translate documents, notice or visual

representations into the official languages spoken by the class of persons for whom

they are intended.

9 Guidelines that may be published or taken into account

The three most common plain-language standards or assessment measures that

may be applied to assess if agreements comply with plain language requirements

are:

(a) informal assessment;

(b) formal assessment; and

(c) using assessment software.98

Informal assessment guidelines include in-house style guides and any other in-house

assessment measures.99 Informal assessment would be difficult to regulate, but is a

valuable in-house assessment tool for plain language. A formal and objective style 96 Section 33 of the Consumer Protection Bill, 2006 (Second Discussion Draft) published in Gen N

418 in GG 28629 of 15 March 2006. 97 See eg, the submissions made by Business Unity South Africa in BUSA 2006 www.busa.org.za. 98 Stoop 2011 Int J Private Law 335. 99 Asprey Plain Language 295-297.


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guide gives more substance to general provisions and is a valuable test mechanism

or guideline that a legislator or a regulator may use to give concrete guidance to

drafters.

The Consumer Protection Act provides that the National Consumer Commission

(NCC) may publish guidelines on methods of assessing plain language.100 No such

objective guidelines have been published yet. In the absence of guidelines, it will be

difficult to tell whether suppliers meet the requirements of plain language or not. In

order to proactively give effect to the requirement of the use of plain language, to

improve levels of disclosure and to increase procedural fairness, objective

assessment mechanisms or guidelines must be put in place.

It is a concern that the definition of plain language is too flexible and is subject to

discretion and interpretation.101 Guidelines on methods of assessing plain language

might solve these concerns and would help in testing compliance with the plain

language provisions and in preventing non-compliance.

The NCC may consider examples of style guides on plain language in foreign

legislation, when drafting the proposed guidelines for South Africa. In any event,

such foreign legislation may be relevant to the interpretation of the plain language

standard in section 22. Section 2(2) provides that "[w]hen interpreting or applying

this Act, a person, court or Tribunal or the Commission may consider appropriate

foreign and international law …".

Very good examples of formal, general and visual style guides that have been

adopted by legislators can be found in the law of the states of Pennsylvania102 and

100 See ss 92-98 for a discussion on the functions of the National Consumer Commission. See also

Gouws 2010 SA Merc LJ 86-90 where he states that an agreement would be in plain language if

the language used was semantically clear and coherent and contained at least some of the features listed in the Act, resulting in the agreement being legible.

101 Stoop 2011 Int J Private Law 333. 102 Pennsylvania Plain Language Consumer Contract Act (Pa Stat Ann Tit. 73 (1997)). S 2205(a)

requires that "all consumer contracts ... shall be written, organized and designed so that they are

easy to read and understand". See also the discussion in Tiersma Legal Language 224-225, Stoop 2011 Int J Private Law 336 and Louw Plain Language 140-141.


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Connecticut103 in the United States of America.104 The legislator of Pennsylvania

prescribed a broad and general standard for plain language. In s 2205(b)-(d) of the

Pennsylvania Plain Language Consumer Contract Act, guidelines are listed to

determine whether the general standard has been met. The guidelines that should

be applied in order to determine if a document meets the plain language

requirement are:

(a) the contract should use short words, paragraphs and sentences and active

verbs

(b) it should not use technical legal terms other than commonly understood legal

terms;

(c) Latin and foreign words may not be used;

(d) if the document defines words, they must be defined by using commonly

understood meanings;

(e) sentences may not contain more than one condition;

(f) and cross-references may not be used, except cross-references that briefly

and clearly describe the substance of the item to which reference is made.

Section 2205(c) contains visual guidelines which a court must consider in

determining whether or not a contract meets these requirements. These guidelines

require, for instance, that the contracts should have type size, line length, column-

width margins and spacing between lines and paragraphs that make the contract

easy to read, that the contract should have caption sections typed in bold, and that

the contract should use ink that contrasts sharply with the paper. If a creditor, lessor

or seller does not comply with the plain language requirements of the Pennsylvania

Plain Language Consumer Contract Act,105 he or she will be liable to that consumer

for the following: compensation in an amount equal to the value of the actual loss

caused by the violation of the Act; statutory damage of US$100 (or less if the total

103 Connecticut General Statutes, 2009 (Conn Gen Stat s 42-152 (1999)). S 152(a) requires that all

consumer contracts "shall be written in plain language". See also Stoop 2011 Int J Private Law 336-337 and Louw Plain Language 139-140.

104 See also Viljoen "Plain Language Experience" 45-51. 105 Section 2205 of the Pennsylvania Plain Language Consumer Contract Act (Pa Stat Ann Tit. 73

(1997)).


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amount of the contract is less than US$100); court costs; reasonable attorney fees;

any equitable and other relief ordered by the court.106

Very similar guidelines to those that apply in Pennsylvania are used in Connecticut,

but a more objective approach may also be followed.107 An objective test is specific

in its specification because it stipulates specific numbers and sizes to which words,

sentences and syllables should adhere.108 The Connecticut statute provides that a

consumer contract is written in plain language if it fully meets the requirements of

the alternative objective test. The objective test requires the following:

(a) the average number of words per sentence must be fewer than 22;

(b) no sentence in the contract may exceed 50 words;

(c) the average number of words per paragraph must be fewer than 75;

(d) no paragraph in the contract may exceed 150 words;

(e) the average number of syllables per word must be fewer than 1.55;

(f) the contract must use personal pronouns, the actual or shortened names of

the parties to the contract, or both, when referring to those parties;

(g) no typeface of less than eight points in size may be used;

(h) at least three sixteenths of an inch of blank space must be allowed between

each paragraph and section;

(i) at least half an inch of blank space must be allowed at all borders of each

page;

(j) if the contract is printed, each section must be captioned in boldface type at

least 10 points in size. If the contract is typewritten, each section must be

captioned and the captions underlined; and

(h) the average line length in the contract must be no more than 65 characters.

The advantage of this alternative approach is that it can be applied easily and

computers can be used to do the required calculations. 106 Section 2207 of the Pennsylvania Plain Language Consumer Contract Act (Pa Stat Ann Tit. 73

(1997)). 107 Connecticut General Statutes, 2009 (Conn Gen Stat s 42-152 (1999)) ss 42-152. See Tiersma

Legal Language 225 and Stoop 2011 Int J Private Law 336-337. 108 See also Louw Plain Language 140.


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There are software programmes that use well-known readability tests to test

whether or not a document is written in plain and understandable language.

Readability formulas are mathematical equations that predict the level of reading

ability needed to understand a specific document. They are based on correlations

with some measure of comprehension, such as scores on a reading test. Therefore,

these formulas predict readability rather than measuring it. Another drawback is that

they do not address the causes of problems people might have in understanding a

document, which makes it difficult to deal with such problems proactively. For

example, legal language is hard to understand and it is difficult to make it more

intelligible.109 Readability formulas therefore have limited use, because they are not

accurate in the context of law, nor are they proactive.110 Furthermore, they are not

specifically adapted in order to test compliance with the plain language requirements

of different sets of legislation. The Flesch reading ease test111 is probably the most

common readability test that is used in software packages such as Microsoft Office

and it is sometimes incorporated into legislation through the requirement of a

minimum score.112 Basically, the test scores the readability of documents in such a

way that a score of 100 would mean that it was simple and a score of 0 would mean

that it was very difficult to read. The average number of words in every sentence

and the average number of syllables per word are taken into account.113 A document

with a very good score would therefore contain shorter words and sentences. The

Flesch reading ease test can be criticised from a legal perspective. The point of

criticism is that legal language is hard to understand and that it cannot be improved

by using only shorter words and sentences.114 This means that a document could

pass the Flesch reading ease test without being written in plain language.

109 Stoop 2011 Int J Private Law 337-338. See also Redish 2000 ACM Journal of Computer

Documentation 132; Klare 1974 Reading Research Quarterly 62. 110 See Asprey Plain Language 299. 111 The Flesch reading ease test was proposed in Flesch 1948 Journal of Applied Psychology 221. 112 See eg Florida's requirements on readable language in insurance policies, where a minimum

score of 45 on the Flesch reading ease test is required (Florida Readable Language in Insurance Policies Law s 627.4145). See also Stoop 2011 Int J Private Law 338. See also Tiersma Legal Language 226; Klare 1974 Reading Research Quarterly 62-102 for an analysis of readability

formulas. 113 Stoop 2011 Int J Private Law 338; Tiersma Legal Language at 226. 114 Stoop 2011 Int J Private Law 338; Tiersma Legal Language at 227.


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Readability tests such as this were not developed for technical documents, because

they ignore content, layout, organisation, word order, visual aids and the intended

audience, and emphasise countable features of the document rather than the

comprehensibility of the text.115 Readability formulas assume that all consumers are

alike, while the Consumer Protection Act requires that an ordinary consumer of the

class of persons for whom the notice, document or representation is intended, with

average literacy skills and minimal experience as a consumer, must be able to

understand the contents without undue effort.116 So, in the South African consumer

context, general text-based readability tests cannot be applied in order to test

compliance with the plain and understandable language requirements.

10 Consequences of non-compliance

10.1 Validity

The effect of a term or agreement not being in plain and understandable language is

not clear. Section 51(1)(a)(i) states that a supplier may not enter into a transaction

or agreement subject to a term or condition if its general purposes is to defeat the

policy of the Act. Section 3(1)(b)(iv) of the Consumer Protection Act states that it is

the purpose of the Act to promote and advance the social and economic welfare of

consumers by:

reducing and ameliorating any disadvantages experienced in accession any supply of goods or services by consumers whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representation is limited by reason of low literacy, vision impairment or limited fluency in the language in which the representation is produced, published or presented.

Furthermore, section 51(1)(b)(i)-(iii) states that a supplier may not enter into a

transaction or agreement subject to a term or condition if it directly or indirectly

purports to waive or deprive a consumer of a right in terms of the Act or avoid a

115 Stoop 2011 Int J Private Law 338; Redish 2000 ACM Journal of Computer Documentation 132-

137. 116 Stoop 2011 Int J Private Law 338.


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supplier's obligation or duty in terms of the Act or override the effect of any

provision of the Act. Section 50(2)(b)(i) requires agreements to be written in plain

and understandable language. Section 51(3) provides that a transaction or

agreement, provision, term or condition of a transaction or agreement is void to the

extent that it contravenes section 51. Therefore, one may argue that if an

agreement is not written in plain and understandable language as required in terms

of section 50(2)(b)(i), the agreement, provision, term or condition of the agreement

will be void in terms of section 51(3).117 If an agreement, term or condition of an

agreement is void, the court may sever any part of the agreement or provision or

alter it to the extent required to render it lawful or declare the entire agreement or

provision void as from the date it purportedly took effect.118 The court may also

make any further order that is just and reasonable in the circumstances with respect

to the agreement.119 On the other hand, one may argue that whether or not an

agreement is in plain and understandable language is merely a factor in deciding

whether a term or agreement is unfair under section 48. Whether a term is in plain

language or not is merely listed as a factor in section 52.120 Therefore non-

compliance with the plain language requirements will not necessarily render a term

or agreement void.121

10.2 Prohibited conduct and compliance notices

In terms of section 71(1) any person may file a complaint with the National

Consumer Commission,122 alleging that a person has acted in a manner inconsistent

with the Act. After concluding an investigation into a complaint pertaining to the

plain language requirements, the National Consumer Commission may if it believes

that a person has engaged in prohibited conduct, issue a compliance notice in terms

117 See also Gouws 2010 SA Merc LJ 90-91. 118 Section 52(4)(a) of the Consumer Protection Act 68 of 2008. See also Gouws 2010 SA Merc LJ

90-91. 119 Section 52(4)(b) of the Consumer Protection Act 68 of 2008. See also Gouws 2010 SA Merc LJ

90-91. 120 Section 52(2)(g) of the Consumer Protection Act 68 of 2008. 121 See also Naudé 2009 SALJ 513. 122 See s 99 of the Consumer Protection Act 68 of 2008 where the enforcement functions of the

Consumer Commission are set out.


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of section 100.123 The compliance notice must, among other things, set out the

details and nature and extent of the non-compliance with the plain language

requirements, any steps that are required to be taken, and the period within which

such steps must be taken. The compliance notice must also set out any penalty that

may be imposed in terms of the Act it those steps are not taken.124 Section 100

further provides that if a person to whom a compliance notice has been issued fails

to comply with the notice, the National Consumer Commission may apply to the

Tribunal for the imposition of an administrative fine125 or refer the matter to the

National Prosecuting Authority in terms of section 110(2).126 Section 110(2) provides

that it is an offence not to act in accordance with a compliance notice.127 However,

no person may be prosecuted in respect of non-compliance with a compliance notice

if the National Consumer Commission has applied to the Tribunal for the imposition

of an administrative fine.

Plain language is not directly addressed in section 40(2). Section 40(2), however,

provides that it is unconscionable for a supplier to knowingly take advantage of the

fact that a consumer was substantially unable to protect his or her own interests

because of an inability to understand the language of an agreement. If a consumer

alleges that a supplier acted unconscionably,128 made false, misleading or deceptive

representations129 or that a contract term or terms are unfair, unreasonable or

unjust,130 the court must consider several factors to ensure fair and just conduct,

terms and conditions.131 One of these factors in deciding if a term or agreement is

unfair under section 48 is the extent to which any documents relating to the

123 Section 73(1)(c)(iv) of the Consumer Protection Act 68 of 2008. 124 Section 100(3) of the Consumer Protection Act 68 of 2008. 125 See s 112 of the Consumer Protection Act 68 of 2008 in respect of administrative fines. If the

National Consumer Tribunal imposes an administrative fine in respect of prohibited or required conduct, the fine may not exceed the greater of 10% of the respondent' annual turnover during

the preceding financial year or R1 million. 126 Section 100(6) of the Consumer Protection Act 68 of 2008. 127 See s 111 of the Consumer Protection Act 68 of 2008 for the penalties in respect of an offence in

terms of the Act. A person convicted of an offence may be liable for a fine or imprisonment for a period not exceeding 12 months, or both a fine and imprisonment. See also Meiring 2010

Without Prejudice 29. 128 Section 40 of the Consumer Protection Act 68 of 2008. 129 Section 41 of the Consumer Protection Act 68 of 2008. 130 Section 48 of the Consumer Protection Act 68 of 2008. 131 Section 52(1) of the Consumer Protection Act 68 of 2008.


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transaction or agreement satisfy the plain language requirement.132 Non-compliance

with the plain language requirements may therefore contribute towards a finding of

unfairness in terms of section 52 of the Act.

11 Conclusion

The Consumer Protection Act has made the use of plain and understandable

language compulsory in contracts and documents intended for consumers. It

contains a detailed definition of plain and understandable language, which contains

elements pertaining to grammar, text, visual aspects, and illustrations. All the

elements of this definition have been analysed in this article. The Act also makes

provision for the publication of guidelines on assessing whether a document is in

plain and understandable language or not. No guidelines have been published yet.

Guidelines based on foreign legislation are therefore proposed in this article.

The importance and role of plain language in consumer contracts have also been

accentuated. Great effort is being made in countries such as South Africa, Australia,

the United Kingdom, Malta, and certain states in the United States of America to

draw up consumer contracts in the simplest language possible, without "fancy

tricks", so that an average consumer can understand such a contract. This is

because a consumer has a right to empathise and understand the contract he or she

signs. One can say that a consumer is entitled to "simple language" and

"transparent" contracts where the rights and duties of all parties are clearly

specified. The most important goal of plain language rights is to empower

consumers to understand the contracts they sign and to make informed decisions. It

would therefore serve no purpose to allow clearly deceptive and misleading clauses

in consumer contracts, even if they are embedded in simple, straightforward words

and phrases.133

132 Section 52(2)(g) of the Consumer Protection Act 68 of 2008. 133 See, in general, Black 1981 Stan L Rev 259-260.


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It must be emphasised that plain language has substantial benefits and advantages

for consumers as well as for businesses. Of course the exact value of these benefits

and advantages cannot be determined, but there are enough compelling reasons to

believe that these benefits and advantages outweigh the costs.134 Most importantly,

using plain language increases transparency, openness and the extent of disclosure,

and contributes to higher levels of procedural fairness. It may also save money and

time by reducing the amount of unnecessary litigation.

To conclude, the use of plain and understandable language in consumer contracts

results in transparency and clear and effective communication - nothing more or

less.135 It is therefore essential that the following should be kept in mind when it

comes to consumer contracts and consumer rights:136

So long as consumers' rights are not transparent, they will not be accessible by consumers. In turn, having rights that are not accessible can be tantamount to not having any rights at all. Therefore, for consumer empowerment, not only should consumers have the necessary rights, but they should also be aware of these rights and be able to access these rights when they need to.

134 Black 1981 Stan L Rev 259-260. 135 Kimble 1994-1995 Scribes J Legal Writing 52. 136 Department for Business Innovation and Skills 2012 www.gov.uk 16.


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2001) 89-118

Asprey Plain Language

Asprey MM Plain Language for Lawyers (Federation Press Leichhardt 2003)

Black 1981 Stan L Rev

Black B "A model plain language law" 1981 Stan L Rev 255-300

Cheek 2010 Clarity

Cheek A "Defining plain language" 2010 Clarity: Journal of the International

Association Promoting Plain Legal Language 5-15

Christie and McFarlane Law of Contract

Christie RH and McFarlane V The Law of Contract in South Africa 5th ed

(LexisNexis Butteworths Durban 2005)

Du Preez 2009 TSAR

Du Preez ML "The Consumer Protection Bill: A Few Preliminary Comments"

2009 TSAR 58-83


548 / 614

Flesch 1948 Journal of Applied Psychology

Flesch R "A New Readability Yardstick" 1948 Journal of Applied Psychology

221-233

Gordon and Burt 2010 Without Prejudice

Gordon F and Burt C "Plain Language" 2010 Without Prejudice 10.4 59-60

Gorones Australian Consumer Law

Gorones SG The Australian Consumer Law (Thomson Reuters Sydney 2011)

Gouws 2010 SA Merc LJ

Gouws MM "A Consumer's Right to Disclosure and Information: Comments on

the Plain Language Provisions of the Consumer Protection Act" 2010 SA Merc

LJ 79-94

Kimble 1994-1995 Scribes J Legal Writing

Kimble J "Answering the critics of plain language" 1994-1995 Scribes J Legal

Writing 51-85

Klare 1974 Reading Research Quarterly

Klare GR "Assessing Readability" 1974 Reading Research Quarterly 62-102

Lawson Exclusion Clauses

Lawson R Exclusion Clauses and Unfair Contract Terms 8th ed (Sweet &

Maxwell London 2005)

Louw Plain Language

Louw E The Plain Language Movement and Legal Reform in the South African

Law of Contract (LLM-thesis UJ 2010)


549 / 614

Meiring 2010 Without Prejudice

Meiring I "Consequences of non-compliance with the Consumer Protection Act

68 of 2008" 2010 Without Prejudice 10.11 28-29

Melville Consumer Protection Act

Melville N The Consumer Protection Act Made Easy (Book of Life Publications

Pretoria 2010)

Micklethwait Noah Webster

Micklethwait D Noah Webster and the American Dictionary (Mcfarland

Jefferson, NC 2000)

Naudé 2006 Stell LR

Naudé T "Unfair contract terms legislation: the Implications of why we need it

for its formulation and application" 2006 Stell LR 361-385

Naudé 2009 SALJ

Naudé T "The Consumer's Right to 'Fair, Reasonable and Just Terms' under

the New Consumer Protection Act in Comparative Perspective" 2009 SALJ

505-536

Nebbia Unfair Contract Terms

Nebbia P Unfair Contract Terms in European Law (Hart Oxford 2007)

Newman 2010 Obiter

Newman P "The influence of plain language and structure on the readability

of contracts" 2010 Obiter 735-745

Paterson 2003 MULR

Paterson J "The Australian Unfair Contract Terms Law: the Rise of Substantive

Unfairness as a Ground for Review of Standard Form Consumer Contracts"

2003 MULR 934-956


550 / 614

Petelin 2010 Corporate Communications

Petelin R "Considering plain language: Issues and initiatives" 2010 Corporate

Communications: An International Journal 205-216

Redish 2000 ACM Journal of Computer Documentation

Redish J "Readability Formulas have even More Limitations than Klare

Discusses" 2000 ACM Journal of Computer Documentation 132-137

Rinkes 2008 Yearbook of Consumer Law

Rinkes JGJ "European Consumer Law: Making Sense" 2008 Yearbook of

Consumer Law 3-18

Sibiya Alleviating Illiteracy

Sibiya HS A Strategy for Alleviating Illiteracy in South Africa: A Historical

Inquiry (PhD-thesis UP 2004)

Stoop 2011 Int J Private Law

Stoop PN "Plain language and assessment of plain language" 2011 Int J

Private Law 329-341

Tiersma Legal Language

Tiersma P Legal Language (University of Chicago Press Chicago 1999)

Viljoen "Plain Language Experience"

Viljoen F "The Plain Language Experience in the USA" in Viljoen F and

Nienaber A (eds) Plain Language for a New Democracy (Protea Bookhouse

Pretoria 2001) 45-51

Willet Fairness

Willet C Fairness in Consumer Contracts: The Case of Unfair Terms (Ashgate

Aldershot 2007)


551 / 614

Willet 2008 Yearbook of Consumer Law

Willet C "General Clauses on Fairness and the Promotion of Values Important

in Services of General Interest" 2008 Yearbook of Consumer Law 67-106

Register of legislation

Australia

Competition and Consumer Act, 2010

Trade Practices Act, 1974

Malta

Maltese Consumer Affairs Act, 1994

South Africa

Companies Act 71 of 2008

Constitution of the Republic of South Africa, 1996

Consumer Protection Act 68 of 2008

Consumer Protection Regulations, 2008

Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972

National Credit Act 34 of 2005

United Kingdom

Enterprise Act, 2002

European Council Directive 93/13/EEC of 5 April 1993

Unfair Contract Terms Act, 1977

Unfair Contract Terms Bill, 2005

Unfair Terms in Consumer Contracts Regulations, 1999

United States of America

Connecticut General Statute, 2009 (Conn Gen Stat s 42-152 (2009))

Florida Readable Language in Insurance Policies Law (Florida Stats Ann s 627.4145)

Pennsylvania Plain Language Consumer Contract Act (Pa Stat Ann Tit 73 (1997))


552 / 614

Register of case law

Australia

Director of Consumer Affairs Victoria v AAPT 2006 VCAT 1493

Office of Fair Trading v Abbey National plc 2008 EWHC 875

South Africa

Bank of Lisbon and South Africa v De Ornelas 1988 3 SA 580 (A)

Magna Alloys and Research (SA) Pty Ltd v Ellis 1984 4 SA 874 (A)

National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 3 SA 1092 (T)

Standard Bank of South Africa Ltd v Dlamini 2012 ZAKZDHC 64

Register of government publications

Gen N 1957 in GG 26774 of 9 September 2004 (Draft Green Paper on the Consumer

Policy Framework)

Gen N 418 in GG 28629 of 15 March 2006 (Consumer Protection Bill, 2006 (Second

Discussion Draft))

Register of internet sources

ACL 2010a www.consumerlaw.gov.au

Australian Consumer Law 2010 The Australian Consumer Law: A Guide to

Provisions www.consumerlaw.gov.au/content/the_acl/downloads/ACL_guide_

to_provisions_November_2010.pdf [date of use 23 Apr 2013]


553 / 614

ACL 2010b www.consumerlaw.gov.au

Australian Consumer Law 2010 A Guide to the Unfair Contract Terms Law

www.consumerlaw.gov.au/content/the_acl/downloads/unfair_contract_terms_

guide.pdf [date of use 23 Apr 2013]

BUSA 2006 www.busa.org.za

Business Unity South Africa 2006 Consumer Protection Bill: Submissions by

Business Unity South Africa www.busa.org.za/docs/Final%20BUSA%

20Submissions%20%20Consumer%20Protection%20Bill.pdf [date of use 5

Jan 2013]

Commonwealth of Australia 2010 www.commonlaw.gov.au

Commonwealth of Australia 2010 A Guide to the Unfair Contract Terms Law

www.consumerlaw.gov.au/content/the.../unfair_contract_terms_guide.rtf

[date of use 7 Aug 2013]

Commonwealth of Australia 2010 www.consumer.vic.gov.au

Commonwealth of Australia 2010 A Guide to the Unfair Contract Terms Law

www.consumer.vic.gov.au/library/publications/businesses/fair-trading/guide-

to-unfair-contract-terms-law-word.rtf [date of use 19 Apr 2013]

Department for Business Innovation and Skills 2012 www.gov.uk

Department for Business Innovation and Skills 2012 Enhancing Consumer

Confidence by Clarifying Consumer Law www.gov.uk/government/uploads/

system/uploads/attachment_data/file/31864/12-937-enhancing-consumer-

consultation-supply-of-goods-services-digital.pdf [date of use 30 Apr 2013]

Kirby 2011 www.mondaq.com

Kirby N 2011 Clearly Clear? Plain and Understandable Language in terms of

the Consumer Protection Act www.mondaq.com/x/144478/Consumer+Law/

Clearly+Clear+Plain+And+Understandable+Language+In+Terms+Of+The+C

onsumer+Protection+Act [date of use 7 Aug 2013]

http://www.consumer.vic.gov.au/


554 / 614

Mazur 2000 www.plainlanguage.gov

Mazur B 2000 Revisiting Plain Language www.plainlanguage.gov/

whatisPL/History/mazur.cfm [date of use 7 Aug 2013]

Micallef 2007 www.iaclaw.org

Micallef PE 2007 Unfair Terms in Contracts - The Maltese Perspective

www.iaclaw.org/Research_papers/unfairterms.pdf [date of use 30 Apr 2013]

Scottish Law Commission 2012 lawcommission.justice.gov.uk

Scottish Law Commission 2012 Unfair Terms in Consumer Contracts: A New

Approach? Issues Paper" lawcommission.justice.gov.uk/docs/

unfair_terms_in_consumer_contracts_issues.pdf [date of use 18 Apr 2013]

Skinner 1998 www.textfixarna.se

Skinner D 2002 Clarity www.textfixarna.se/wp-content/uploads/

2013/01/plain_english.pdf [date of use 22 Apr 2013]

Sundin 2002 www.textfixarna.se

Sundin M 2002 Plain English and Swedish larspråk www.textfixarna.se/wp-

content/uploads/2013/01/plain_english.pdf [date of use 22 Apr 2013]

World Bank 2012 web.worldbank.org

World Bank 2012 South Africa data.worldbank.org/country/south-africa [date

of use 23 Jul 2012]

List of abbreviations

ACL Australian Consumer Law

BUSA Business Unity South Africa

DTI Department of Trade and Industry

Int J Private Law International Journal of Private Law


555 / 614

MULR Melbourne University Law Review

NCC National Consumer Commission

SALJ South African Law Journal

SA Merc LJ South African Mercantile Law Journal

Scribes J Legal Writing The Scribes Journal of Legal Writing

Stan L Rev Stanford Law Review

Stell LR Stellenbosch Law Review

TSAR Tydskrif vir die Suid-Afrikaanse Reg

UCTA Unfair Contract Terms Act

UTCCR Unfair Terms in Consumer Contracts Regulations

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